[Federal Register Volume 60, Number 172 (Wednesday, September 6, 1995)]
[Notices]
[Pages 46315-46316]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22034]



-----------------------------------------------------------------------

NUCLEAR REGULATORY COMMISSION
[Docket No. 50-344]


Portland General Electric Co.; Trojan Nuclear Power Station; 
Federal Court Decision and Opportunity for Public Comments

    On July 20, 1995, the United States Court of Appeals for the First 
Circuit issued a decision granting a petition by the Citizens Awareness 
Network (``CAN'') for review of a decision by the Nuclear Regulatory 
Commission. See Citizens Awareness Network, Inc. v. NRC, No. 94-1562, 
______ F.3d ______, 1995 WL 419188 (1st Cir., July 20, 1995). The First 
Circuit found that the Commission erred when it rejected CAN's request 
for a hearing on the component removal project (``CRP'') that Yankee 
Atomic Electric Power Company (``YAEC'') is carrying out as part of 
decommissioning the Yankee Nuclear Power Station, located in Rowe, 
Massachusetts. The Court held that ``CAN was entitled to a hearing 
under section 189a [of the Atomic Energy Act of 1954] in connection 
with the NRC decision to permit YAEC's early CRP.'' Slip op. at 26. The 
Court also held that 

[[Page 46316]]
the Commission had violated the National Environmental Policy Act by 
permitting YAEC to initiate the CRP before the agency had prepared an 
environmental assessment or impact statement. The Court remanded the 
case to the Commission for further action in accordance with these 
holdings.
    In reaching these results the Court criticized the Commission's 
change in interpretation of its 1988 decommissioning regulations 1 
that it announced in a staff requirements memorandum dated January 14, 
1993. In that memorandum, the Commission decided to allow its licensees 
to conduct ``any decommissioning activity'' prior to NRC approval of a 
decommissioning plan, so long as the activity did not ``violate the 
terms of the licensee's existing license * * * or 10 CFR 50.59 as 
applied to the existing license.'' Previously, the Commission had 
required that ``major dismantling and other activities * * * must await 
NRC approval of a decommissioning plan.'' See Long Island Lighting Co. 
(Shoreham Nuclear Power Station, Unit 1), CLI-91-2, 33 NRC 61, 73 n.5 
(1991). Accord, Sacramento Municipal Utility District (Rancho Seco 
Nuclear Generating Station), CLI-92-2, 35 NRC 47, 61 n.7 (1992). 
Relying on the Commission's new interpretation, YAEC began removing 
major components from its Yankee reactor before obtaining approval of a 
decommissioning plan.2 In its decision, the First Circuit held 
(among other things) that the Commission had failed to give an adequate 
explanation for its shift in policy.

    \1\ See 53 FR 24018 (June 27, 1988).
    \2\ Subsequently, on February 14, 1995, the NRC approved a 
decommissioning plan for Yankee Rowe. See 60 FR 9870 (February 22, 
1995). During the approval process, the NRC staff held an informal 
public meeting to receive comments about the plan.
---------------------------------------------------------------------------

    The Commission will not seek either rehearing of this decision by 
the First Circuit or review in the United States Supreme Court. When 
the First Circuit's mandate issues, the Commission will comply with the 
decision.3 The Commission currently believes that, pending 
completion of its ongoing rulemaking on decommissioning, further 
decommissioning activities must be conducted under existing NRC 
regulations as the Commission interpreted and applied them prior to the 
1993 change in interpretation that the court rejected.4 Prior to 
January, 1993, NRC licensees could not initiate major dismantling 
activities prior to Commission approval of a decommissioning plan. 
Furthermore, prior to 1993 the Commission consistently offered 
opportunities for hearings on proposed decommissioning plans.5

    \3\ Pursuant to Rule 41 of the Federal Rules of Appellate 
Procedure, the Court's mandate will issue no later than September 
12, 1995, unless the intervenor YAEC petitions for rehearing or 
obtains a stay of mandate pending a petition for Certiorari.
    \4\ The Commission has published for comment a proposed 
decommissioning rule that would introduce significant changes in the 
present regulations. See 60 FR 37374 (July 20, 1995). Because this 
new rulemaking is underway, the Commission does not intend to 
undertake procedures to reinstate the 1993 policy change.
    \5\ The NRC staff offered an opportunity for hearings on 
proposed orders approving the Shoreham, Fort St. Vrain, and Rancho 
Seco decommissioning plans, which were the only plans approved under 
the Commission's 1988 decommissioning regulations. See, e.g., 56 FR 
66459 (December 23, 1991); 57 FR 8940 (Mar. 13, 1992); and 57 FR 
9577 (Mar. 19, 1992). A hearing was requested on the Rancho Seco 
plan and was being conducted when the case was settled. A hearing 
was requested on the Shoreham plan, but the case was settled before 
the hearing opened.
---------------------------------------------------------------------------

    By a separate notice published today the Commission is soliciting 
public comments on how to proceed on remand in the Yankee proceeding 
itself. But other nuclear power plants contemplating or engaged in 
decommissioning may also be affected by the First Circuit decision. The 
most notable of these is the Trojan Nuclear Power Station, located near 
Portland, Oregon, and operated by Portland General Electric (``PGE''). 
Currently, PGE is engaged in a program of dismantlement and removal of 
large components in advance of receiving NRC approval of the Trojan 
decommissioning plan. The Trojan decommissioning plan was submitted to 
the NRC in January, 1995, and review by the NRC staff is currently in 
progress.
    In view of the First Circuit decision the Commission intends to 
issue a Federal Register notice offering an opportunity for a hearing 
on whether to approve the Trojan plan. In addition, the Commission is 
considering whether it is necessary to halt any decommissioning 
activity at Trojan, pending a hearing. The First Circuit decision does 
not require the Commission to take affirmative action halting 
dismantling activities currently being conducted in reliance on the 
interpretation rejected by the court. Nonetheless, the Commission's 
prior interpretation of its rules precludes major dismantling 
activities prior to approval of a decommissioning plan.
    Comments submitted at this time by interested persons should 
address the Commission's legal authority to allow or forbid further 
decommissioning activity at Trojan and should address the current 
balance of equities, including (1) any consequences for public health 
and safety and the environment, (2) the costs to PGE and others from 
interrupting decommissioning activities, and (3) the public interest. 
The Commission also requests comments on the Commission's proposed 
response to the First Circuit decision as a general matter. Alternative 
suggestions on how the Commission should oversee decommissioning in the 
wake of the First Circuit decision are welcome.
    The NRC requests PGE to submit its comments no later than 10 
calendar days after publication of this notice. The NRC requests other 
interested members of the public to submit comments as soon thereafter 
as possible, but no later than 17 calendar days after publication of 
this notice. The NRC promptly will place copies of all comments in its 
Public Document Room and in the Local Public Document Room at the 
Trojan site.
    In addition, PGE and the parties to the Oregon state proceeding 
reviewing the Trojan CRP should serve their comments directly on each 
other and on the NRC staff. All comments should be addressed to: Emile 
Julian, Chief, Docketing and Service Branch, Office of the Secretary, 
U.S. Nuclear Regulatory Commission, Washington, DC 20555. Service of 
comments on the NRC Staff may be accomplished by addressing them to: 
Seymour H. Weiss, Chief, Non-Power Reactors and Decommissioning Project 
Directorate, Office of Nuclear Reactor Regulation, U.S. Nuclear 
Regulatory Commission, Washington, DC 20555, and Lawrence J. Chandler, 
Esq., Assistant General Counsel for Hearings and Enforcement, U.S. 
Nuclear Regulatory Commission, Washington, DC 20555. Comments may be 
hand-delivered to the NRC's Offices at 11555 Rockville Pike, Rockville, 
Maryland between 7:45 a.m. and 4:15 p.m. on Federal Workdays.

FOR FURTHER INFORMATION CONTACT: Charles Mullins, Office of the General 
Counsel, U.S. Nuclear Regulatory Commission, Washington DC 20555, 
telephone (301) 415-1606.

    Dated at Rockville, MD, this 30th day of August, 1995.

    For the Nuclear Regulatory Commission.
Andrew L. Bates,
Acting Secretary of the Commission.
[FR Doc. 95-22034 Filed 9-5-95; 8:45 am]
BILLING CODE 7590-01-P